appellant. Appeal allowed with costs. Judgment of the Full Court of the Supreme Court of Victoria varied by setting aside the orders in respect of the appeal to that Court and instead order that the appeal be...
Key principles
Particulars furnished under O.19 r.5a do not confine the range within which a jury quantifies a plaintiff's general damages.
Where evidence admitted without objection tends to establish a claim for damages higher than that made in the particulars, a defendant is in no stronger position to avoid an...
A disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence where there is no departure during the...
Once the issue of general damages is submitted to the jury at large without demur from either party, it is too late to complain that the particulars advanced a limited claim.
Issues before the court
Whether a Full Court may set aside a jury's assessment of damages on the ground that the amount assessed exceeds the quantum of lost earning...
Cited legislation
Plain English Summary
A jockey injured by a negligent driver won a jury award of $215,000. The defendant argued on appeal that the sum was too high because it exceeded the weekly loss figures the plaintiff had given in pre-trial particulars. The Full Court agreed and ordered a fresh trial on damages only. The High Court reversed that decision, ruling that the particulars gave the defendant fair notice but did not tie the jury's hands. Because the higher-earnings evidence had been led without objection, the jury had been told to assess whatever sum the facts justified, and nobody had asked the judge to confine the award by reference to the particulars, the jury verdict stood. The appeal was allowed and the original judgment restored.
AI-generated legal information, not legal advice. Zoe can make mistakes — check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
2,214 words · generated 24/04/2026
What happened
On 5 September 1977 a 37-year-old jockey, the present appellant, was struck by a motor vehicle and suffered personal injury. He sued the driver, the present respondent, in the Supreme Court of Victoria. At trial before O'Bryan J. the jury found the defendant negligent, assessed the plaintiff's total damages at $300,000, found the plaintiff guilty of contributory negligence to the extent of 30 per cent, and accordingly reduced the award to $210,000. Interest of $5,000 was added and judgment entered for $215,000 with costs.
No linked legislation citations have been extracted yet.
The major head of damage was loss of earning capacity. Evidence was given that the plaintiff had been earning $160–$170 gross per week from track work and had regular race rides at country meetings. Twelve to fifteen losing rides per week at prevailing fees, together with track-work earnings, could produce gross weekly income of $520–$620. The plaintiff had intended to ride until age 50 and then move into other remunerative work until age 65. He was 41 at trial.
Shortly before trial the plaintiff had supplied particulars under O.19 r.5a of the Rules of the Supreme Court. Those particulars stated that he would have earned approximately $150 net per week from the date of accident to trial (total $28,000) and, for the future, at least $200 net per week until age 65. In address to the jury plaintiff's counsel used conservative figures of the order of $200–$250 gross less tax of about $50, but did not abandon any part of the claim and invited the jury to assess damages on the evidence.
The defendant appealed to the Full Court of the Supreme Court of Victoria solely on quantum, arguing that the verdict was so large that the jury must have misconducted itself. The Full Court, accepting that there was evidence capable of supporting the assessment, nevertheless set the verdict aside because it exceeded the claim in the particulars. Starke J. (Murphy J. agreeing) held that a respondent on appeal cannot depart from his particulars and conduct at trial if the appellant has been misled and deprived of a substantial right, such as the opportunity to seek further reply, an adjournment, discharge of the jury, or to pay a further sum into court. Brooking J. emphasised that the tribunal of fact is bound by the pleadings and particulars even in jury trials, and that evidence capable of sustaining a higher award did not entitle the plaintiff to travel outside the pleaded claim.
The plaintiff obtained special leave to appeal to the High Court. The Court (Murphy, Wilson, Brennan, Deane and Dawson JJ.) allowed the appeal, varied the Full Court's orders, and restored the trial judgment.
Why the court decided this way
The High Court began by recalling the several functions of pleadings and particulars: they give the opposing party fair notice (Gould and Birbeck and Bacon v. Mount Oxide Mines Ltd. (In liq.)), define the issues so that relevance and admissibility of evidence can be determined (Miller v. Cameron), and assist a defendant in deciding whether and in what sum to pay into court. Subject to the parties expressly fighting on different issues, relief must be founded on the pleadings.
However, the Court drew a firm distinction between the pleaded cause of action and the quantitative particulars of loss. Once O.19 r.5a required detailed particulars of earnings lost and loss of earning capacity, a defendant was entitled to notice of those matters. The rule did not, however, create any new obligation to nominate a fixed upper limit on the claim where none previously existed, nor did it confine the jury's task of quantifying general damages.
Crucially, the evidence of higher gross earnings was admissible and was in fact admitted without objection. That evidence corresponded with the pleaded facts—that the plaintiff's earning capacity had been destroyed, that he would have ridden until 50, and that he intended to work until 65—but tended to show a larger net weekly loss than the “at least $200” claimed. The Court repeated the principle stated in Leotta v. Public Transport Commission (N.S.W.) and applied in Domsalla v. Barr: where evidence going beyond the particulars is received without objection, it is not open to an appellate court to disregard that evidence. The defendant could have objected, sought an adjournment, or asked for the jury to be discharged, but did none of those things. The defendant therefore could not later complain that he had been taken by surprise.
The Court noted that plaintiff's counsel had continued to advance a conservative figure, yet “conservative advocacy does not forfeit a plaintiff's right to the jury's own assessment of damages upon the evidence, unless counsel … abandons his client's claim in excess of a stated sum.” No such abandonment occurred. The trial judge left damages “at large” and was not asked to give a direction confining the jury to the particulars. Both sides having acquiesced in that course, they were bound by the jury's answer (Rowe v. Australian United Steam Navigation Co. Ltd.).
Because the particulars were never placed before the jury, they could not demonstrate that the jury had failed in its duty. The verdict was open to challenge only on the well-established grounds summarised in Phillips v. Ellinson Brothers Pty. Ltd. and Australian Iron & Steel Ltd. v. Greenwood; none of those grounds was made out. The assessment was therefore impervious to attack on the basis of inconsistency with the particulars. The Full Court's order could not stand.
Before and after state of the law
Before Dare v. Pulham the law contained two overlapping strands. First, pleadings and particulars were required to give fair notice so that a defendant could meet the case and decide on a payment into court (Perestrello e Companhia Limitada v. United Paint Co. Ltd.). Damage not the necessary and immediate consequence of the tort had to be specifically warned of in the pleadings. Second, there was older authority (Potter v. Metropolitan Railway Co.) suggesting that particulars of incapacity for work might not ordinarily be required at all. The introduction of O.19 r.5a swept away that latter view and made detailed particulars mandatory in every personal-injury action.
Nevertheless, uncertainty remained about the precise forensic effect of those particulars. Some judges appeared to treat them as almost capping the claim; others saw them as merely evidentiary. The Full Court in the present case had taken a strict view: if the jury's award substantially exceeded the pleaded weekly sums and the defendant might have conducted the trial differently had he known a higher case would be advanced, the verdict could not stand.
The High Court clarified and relaxed that strictness. Particulars still perform their notice-giving, issue-defining and payment-into-court functions. They may be amended even after evidence has closed (Mummery v. Irvings Pty. Ltd.). But once evidence expanding the quantum is admitted without objection, and the trial proceeds on the footing that damages are at large, the particulars do not operate as a ceiling. The jury's assessment is to be judged by reference to the evidence actually before it, not by invisible documents never seen by the jury. The decision therefore marked a shift from a more formalistic to a more functional approach: the question is whether the defendant was in fact misled or deprived of a forensic opportunity, not whether the arithmetic of the verdict matched the arithmetic of the particulars.
Key passages with plain-English translation
The Court stated: “But where there is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence.” In plain English this means that if the plaintiff has always sued for loss of earning capacity caused by the accident, the fact that the numbers in the pre-trial schedule turn out to be lower than the numbers proved in the witness box does not prevent the plaintiff from keeping the jury's verdict.
Later the Court said: “Damages were at large, not confined by the particulars furnished or by counsel's submissions.” Translation: once the judge tells the jury to award whatever sum they think the evidence justifies, the figures the plaintiff wrote in his particulars cease to operate as a legal limit. The jury's common-sense assessment prevails.
The judgment also recites Lord Donovan's statement from Perestrello that a plaintiff must warn the defendant in the pleadings of damage that is not the necessary and immediate consequence of the tort. The High Court immediately qualifies this by noting that O.19 r.5a extends the ambit of required particulars but “does no more than extend the ambit”. In other words, the rule is a notice rule, not a damages-cap rule.
Finally: “The parties, bound by the course which they took at the trial must accept the answer given by the jury to the question of damages submitted in the form to which they assented or in which they acquiesced (Rowe).” Plain English: if neither side asked the judge to tell the jury “you must not go above $X”, they cannot later complain that the jury went above $X.
What fact patterns trigger this precedent
Dare v. Pulham is triggered whenever three conditions coincide in a personal-injury jury trial. First, the plaintiff has furnished O.19 r.5a particulars that state a particular weekly loss or total. Second, evidence is led—usually in bits and pieces from lay or expert witnesses—that, when pieced together with tax tables or other material, is capable of supporting a materially higher loss. Third, that evidence is admitted without objection, no application is made to discharge the jury or for an adjournment, and the trial judge is not asked to direct the jury that their award must be limited by the particulars.
The precedent applies with equal force whether counsel for the plaintiff addresses conservatively or ambitiously, provided there is no express abandonment of the higher claim. It is engaged both in claims for past economic loss and for future loss of earning capacity, and extends to any head of general damages that is “at large”. The principle is not limited to jockeys or self-employed plaintiffs; it applies to any plaintiff whose earning capacity is in issue. Conversely, the case does not assist a plaintiff who has expressly abandoned part of the claim or who has allowed the defendant to fight the trial on the explicit footing that damages will not exceed a stated sum.
How later courts have treated it
The High Court itself treated Leotta v. Public Transport Commission (N.S.W.) and Domsalla v. Barr as authoritative. It adopted the proposition that evidence received without objection can support a verdict even if it introduces a “new element” not foreshadowed in the pleadings or particulars. The Court also relied on the older authorities in Gould, Miller, Mummery and Rowe for the orthodox functions of pleadings while subordinating those functions to the reality of the way the trial was actually conducted.
The judgment expressly refrained from deciding the outer limits of the principle. It noted the Full Court's observation that in some cases a plaintiff who has “clearly” conducted the case beyond the particulars might be held to those particulars on appeal if the defendant has been deprived of a substantial right. Because no such clear departure or prejudice existed on the facts before it, the High Court left that question for another day. The decision therefore stands as a strong endorsement of the primacy of the evidence actually before the jury over the invisible particulars, while signalling that egregious cases of trial by ambush might still attract appellate intervention.
Still-open questions
The judgment leaves open what degree of departure from particulars, and what level of prejudice, would be sufficient to bind a plaintiff on appeal to a lower sum than the jury awarded. Starke J. in the Full Court had listed possible forensic steps a defendant might have taken—further reply, adjournment, discharge of the jury, increased payment in—but the High Court did not decide whether the mere possibility of those steps, without evidence that they would have been taken, is enough to vitiate the verdict.
A further open question is the position where the trial judge is asked to, and does, direct the jury that their award must not exceed a particular sum derived from the particulars. The present case was decided on the footing that no such limiting direction was sought or given. Whether a plaintiff who obtains a verdict in excess of a judicially imposed limit could still rely on Dare remains undecided.
Finally, the interaction between Dare and modern case-management rules that treat particulars as almost a substitute for evidence is not addressed. The decision predates many of the stricter timetabling and pre-trial disclosure regimes now in force in Australian superior courts. How far those regimes have impliedly narrowed the latitude recognised in Dare is a live practical question for trial lawyers.
Most practitioners still do not realise that the particulars schedule is not a damages ceiling. The case is therefore a powerful weapon for plaintiffs who have led higher-evidence without objection, yet it is frequently overlooked by defendants who assume that any verdict above the pleaded weekly sum must be excessive. That forensic blind spot continues to generate unnecessary appeals and provides the commercial justification for close study of the decision.
Judgment (28 paragraphs)
[1]
High Court of Australia
Murphy, Wilson, Brennan, Deane and Dawson JJ.
Dare v Pulham
[1982] HCA 70
[2]
ORDER
Appeal allowed with costs. Judgment of the Full Court of the Supreme Court of Victoria varied by setting aside the orders in respect of the appeal to that Court and instead order that the appeal be dismissed with costs.
[3]
The Court delivered the following written judgment: -
[4]
Dec. 4
Murphy, Wilson, Brennan, Deane and Dawson JJ.
[5]
This appeal is brought by special leave against a judgment of the Full Court of the Supreme Court of Victoria. The Full Court set aside in so far as it refers to damages a judgment of O'Bryan J. entered upon a verdict of a jury and ordered a new trial limited to damages. The plaintiff in the action, the present appellant, was a jockey who suffered personal injury when he was struck by a motor vehicle on 5 September 1977. The jury found the defendant in the action, the present respondent, guilty of negligence, assessed the total amount of the plaintiff's damages at $300,000, but found further that the plaintiff was guilty of contributory negligence and that it was just and equitable that those damages should be reduced by 30 per cent. To the $210,000 thus awarded $5,000 damages in the nature of interest was added and judgment was entered in the sum of $215,000 with costs to be taxed.
[6]
The respondent appealed to the Full Court against the jury's assessment of damages, contending that the amount assessed was so large that the jury must, in some way, have misconducted itself. The major component of the appellant's damages was his loss of earning capacity. Evidence was admitted at the trial that he had been earning $160 to $170 per week gross for riding track work, and that he had three or four rides at weekday country meetings and five or six rides at Saturday country meetings. There were two or three country meetings a week, and it seems that twelve to fifteen losing rides per week was a figure which the jury was entitled to consider in assessing his loss of earnings. Although a winning ride would be a bonus, that number of losing rides at the current riding fees together with the earnings from trackwork could yield gross earnings of $520 to $620 per week. The appellant had not proposed to continue riding after the age of 50, but there was a reasonable expectation that he would then become a stable foreman, a position in which the earnings amounted to $250 gross per week. He had an ambition to be a trainer, but he may not have achieved that ambition. He was aged 37 at the time of his accident, 41 at the time of the trial, so that he had nine or ten years of work as a jockey before seeking other employment.
[7]
In the Full Court, counsel for the plaintiff sought to support the jury's assessment by taking a round figure of $300 per week as the plaintiff's net earnings until the age of 65. After discounting this amount and allowing for the vicissitudes of life, it was submitted that, on the evidence led at the trial, $200,000 was a reasonable figure at which to assess lost earning capacity and an allowance of $100,000 for future medical needs, pain and suffering and special damages was in no way excessive. On this approach, it was submitted that the appeal to the Full Court should fail.
[8]
Shortly prior to the trial, however, the plaintiff had furnished the defendant with particulars of his loss of earning capacity in accordance with 0.19, r. 5a of the Rules of the Supreme Court. That rule reads:
[9]
Notwithstanding anything to the contrary in Rule 5 in all actions in which the damages claimed by the plaintiff consist of or include damages in respect of personal injuries to any person the pleading shall state:
[10]
(a) particulars, with dates and amounts, of all earnings lost in consequence of the injuries;
[11]
(b) particulars of any loss of earning capacity resulting from the injuries;
[12]
(d) the name and address of each of the plaintiff's employers commencing from the day being twelve months before he sustained the injuries complained of, the time of commencement and the duration of each such employment and total net amount, after deduction of tax, that was earned in each such employment.
[13]
The particulars provided by the plaintiff included the following:
Loss of Earnings:
[14]
At the date of the accident the Plaintiff was self employed and held an "A" Class Jockey's Licence. Had it not been for the accident the Plaintiff estimates that he would have earned approximately $150.00 net per week from the date of the accident to date, making a total loss of $28,000.00.
[15]
The Plaintiff was born on the 2nd January, 1940 and is now aged 41 years. By reason of his injuries sustained in the accident the Plaintiff's capacity to earn income has been destroyed. He will be unable to resume his employment as a Jockey, or any other employment. Had it not been for the accident the Plaintiff intended to ride until he attained the age of at least 50 years. Thereafter he intended to engage in other remunerative work until the normal retiring age of 65 years. The Plaintiff estimates that at the present time he would be able to earn at least $200.00 net per week and claims this amount per week from to date to age 65 years for loss of earning capacity.
[16]
The Full Court understood these particulars as meaning that the plaintiff was claiming much less by way of lost earning capacity than the $300 net per week until the age of 65 for which counsel contended in seeking to uphold the jury's assessment. For the purposes of this appeal that understanding may be accepted, although the expression of the net weekly loss of "at least $200" means that something over $200 per week was claimed. When the plaintiff's counsel addressed the jury, he did not put to them the figure of $300 per week, but discussed earnings of the order of $200 to $250 per week less tax of about $50 per week. But conservative advocacy does not forfeit a plaintiff's right to the jury's own assessment of damages upon the evidence, unless counsel for the plaintiff abandons his client's claim in excess of a stated sum. There was no abandonment of the plaintiff's claim in this case. However, the Full Court held that the jury's assessment could not be allowed to stand, in the light of the particulars furnished and the address of counsel, though their Honours accepted the submission that there was evidence to support the assessment. Starke J., with whom Murphy J. agreed, said:
[17]
the question that arises is how far a respondent in a court of appeal seeking to sustain an award of damages may depart from the particulars of pleadings and from the conduct of the case at first instance. It seems to me as a matter of fundamental principle that, if an appellant is misled by the particulars and by the conduct of the case of the respondent below, and is thus deprived of a right which he may have otherwise exercised below and which is now denied to him, the respondent is bound on appeal by such particulars and such conduct. In this case, for instance, if counsel for the respondent had gone beyond the pleaded particulars during his final address to the jury, counsel for the appellant might have sought a right of further reply, he might have sought an adjournment, he might have sought the discharge of the jury, he might have wished to pay into court a sum or a further sum of money; no doubt there are other remedies that might have been open to him. It might be argued that by failing to object to evidence which went beyond the particulars that the appellant cannot now object to the endeavour of the respondent to use such evidence so as to sustain the judgment. However, the evidence relating to earnings was all given as gross figures and, moreover, came out in bits and pieces. The accumulative effect of such evidence may not have had any impact on counsel for the appellant, particularly as counsel for the respondent in his final address made no attempt to go outside his particulars.
And later:
It is not necessary in this case to determine the question of counsel for respondent attempting to support the verdict below, where he has clearly below conducted his case in a manner beyond the particulars given, and I refrain from doing so, nor do I say that in every case where counsel at first instance in the conduct of his case goes beyond his particulars the verdict can never be sustained by reference to evidence which goes beyond the particulars given. In every case it must, I think, be a question of whether the appellant has been deprived below of some substantial right which is no longer available to him on appeal.
Brooking J. said:
The tribunal of fact, be it judge or jury, is, in general, bound by the pleadings and particulars. The fact that the pleadings and particulars may not in fact be read to the jury, and the refusal of appellate courts to interfere with jury verdicts where there is some evidence to support them, must not be allowed to obscure the limiting effect, even in jury trials, of the documents in which each party sets out his case. A court of appeal will not treat reliance on these documents, which are, after all, the backbone of the litigation, as pedantry or mere formalism While evidence was led for the plaintiff which, pieced together, and taken in conjunction with tax tables, was capable of sustaining a finding that but for the accident the plaintiff would in the future have earned on an average much more than $200 net per week, it was not possible to say of any given piece of evidence that it was admissible only if the plaintiff was to be permitted to travel outside the claim made in his particulars in respect of lost earning capacity for the future.
[18]
Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it (Gould and Birbeck and Bacon v. Mount Oxide Mines Ltd. (In liq.) [1] ; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial (Miller v. Cameron [2] ); and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings (Gould and Birbeck and Bacon [3] ; Sri Mahant Govind Rao v. Sita Ram Kesho [4] ). But where there is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence. Particulars may be amended after the evidence in a trial has closed (Mummery v. Irvings Pty. Ltd. [5] ), though a failure to amend particulars to accord precisely with the facts which have emerged in the course of evidence does not necessarily preclude a plaintiff from seeking a verdict on the cause of action alleged in reliance upon the facts actually established by the evidence (Leotta v. Public Transport Commission (N.S.W.) [6] ).
[19]
(1916) 22 C.L.R. 490, at p. 517.
2. (1936) 54 C.L.R. 572, at pp. 576-577.
3. (1916) 22 C.L.R., at pp. 517, 518.
4. (1898) L.R. 25 Ind. App. 195, at p. 207.
5. (1956) 96 C.L.R. 99, at pp. 111, 112, 127.
6. (1976) 9 A.L.R. 437, at p. 446; 50 A.L.J.R. 666, at p. 668.
[20]
After the introduction of 0.19, r. 5a the view that particulars would not ordinarily be required in respect of a plaintiff's incapacity for work (cf. Potter v. Metropolitan Railway Co. [7] was no longer tenable. In any event, that view could not be sustained without qualification. It was qualified at least by the principle expressed by Lord Donovan in Perestrello e Companhia Limitada v. United Paint Co. Ltd. [8] :
[21]
if a plaintiff has suffered damage of a kind which is not the necessary and immediate consequence of the wrongful act, he must warn the defendant in the pleadings that the compensation claimed will extend to this damage, thus showing the defendant the case he has to meet and assisting him in computing a payment into court.
1. (1873) 28 L.T. 735.
2. [1969] 1 W.L.R. 570, at p. 579; [1969] 3 All E.R. 479, at pp. 485-486.
[22]
The introduction of 0.19, r. 5a required that the defendant be given notice of all the matters referred to in that rule, whether or not notice would otherwise have been required. But the rule does no more than extend the ambit of the particulars which a plaintiff is a required to furnish. The rule does not create a duty to state a limit on the amount which a plaintiff claims where that duty does not otherwise exist (cf. London and Northern Bank Ltd. v. George Newnes [9] ); nor does the rule purport to confine the range within which the jury is to quantify a plaintiff's general damages (cf. Admiralty Commissioners v. S. S. Susquehanna [10] per Viscount Dunedin). In the event that evidence, admitted without objection, tends to establish a claim for damages higher than the claim made in the particulars, the defendant is placed in no stronger position to avoid an assessment based upon that evidence than he would be if a verdict was returned on facts not alleged in particulars but admitted without objection at the trial to establish the cause of action pleaded: see Leotta [11] . The present case is similar to Domsalla v. Barr [12] where the plaintiff sought damages on a footing of which particulars ought to have been given, namely, that he would have gone into business on his own account if he had not been injured. There, the plaintiff led evidence of that matter without having given particulars but without objection. Edmund Davies L.J. (as he then was) referred to what Lord Donovan had said in Perestrello and went on to say [13] :
[23]
By adverting to the plaintiff's intention to set up in business on his own account, there was being introduced into this case an entirely new element of which there was no adumbration at all in the statement of claim. For that reason, in my judgment, the plaintiff was going outside his pleading, and objection might properly have been taken to the leading of such evidence. The objection, however, was not made, and accordingly it is not right, in my judgment, for this court to say now it will not have regard to such evidence as was called in support of this new, unpleaded matter.
1. (1900) 16 T.L.R. 433.
2. [1926] A.C. 655, at p. 661.
3. (1976) 9 A.L.R., at p. 446; 50 A.L.J.R., at p. 668.
4. [1969] 1 W.L.R. 630; [1969] 3 All E.R. 487.
5. [1969] 1 W.L.R., at p. 635; [1969] 3 All E.R., at p. 493.
[24]
In the present case, not only was the evidence upon which the jury assessed the damages not objected to: it was not open to objection. The particulars which the plaintiff had furnished gave notice to the defendant that his earning capacity had been destroyed, that he would have worked as a jockey until he was 50 and that he had intended to get other remunerative work to the age of 65. His evidence at the trial corresponded with those particulars but, favourably viewed, tended to show a larger net weekly loss than the amount which the plaintiff claimed he would have earned. True it is that his counsel continued to advance in argument the more conservative figure, but the jury were invited to assess the damages at whatever figure they thought right upon the facts which they found. They were so directed, and rightly. Damages were at large, not confined by the particulars furnished or by counsel's submissions. The evidence which tended to show a larger loss than the loss specified in the particulars did not take the defendant by surprise or, if it did, it did not lead to any application for a discharge of the jury or an adjournment to enable him to contest it. The defendant could not have been misled as to the significance of the evidence in the minds of the jury. Even if counsel for the plaintiff had expected, and if he had led counsel for the defendant also to expect, that the jury would assess damages at a lower amount than the amount they chose, the unfulfilled expectation of counsel does not establish misconduct on the part of the jury.
[25]
The judge was not invited by counsel to direct the jury to limit the range of general damages. Once the issue of general damages was submitted to the jury as a question at large for their determination and there was no demur from either party as to the question so submitted to them - and we do not suggest that there was any error in submitting the matter in that way - it was too late to complain that the particulars advanced a limited claim for damages. The parties, bound by the course which they took at the trial must accept the answer given by the jury to the question of damages submitted in the form to which they assented or in which they acquiesced (Rowe v. Australian United Steam Navigation Co. Ltd. [14] ).
[26]
The verdict of the jury is not open to challenge except upon well-established grounds none of which applies in this case (see Phillips v. Ellinson Brothers Pty. Ltd. [15] ; Australian Iron & Steel Ltd. v. Greenwood [16] ). The respondent did not seek to uphold the Full Court's order on the ground that the evidence did not support the assessment. Nor was that ground embraced by the Full Court. It was not submitted that the assessment was affected by any wrongful admission or rejection of evidence or by any misdirection by the trial judge. The jury's assessment cannot be set aside on the grounds of inconsistency with particulars of general damages - particulars which the jury did not see. Those particulars, unknown to the jury, cannot be relied on to show that the jury failed to perform their duty in assessing damages.
[27]
(1941) 65 C.L.R. 221, at p. 228.
2. (1962) 107 C.L.R. 308, at pp. 315, 322.
[28]
The appeal must be allowed and the judgment of the trial judge restored.
Parties
Applicant/Plaintiff:
Dare
Respondent/Defendant:
Pulham
AI Analysis
Outcomeappellant
Disposition:
Appeal allowed with costs. Judgment of the Full Court of the Supreme Court of Victoria varied by setting aside the orders in respect of the appeal to that Court and instead order that the appeal be dismissed with costs.